Appeals court affirms FDNY minority recruitment monitor

A federal appeals court on Tuesday refused to remove a Brooklyn federal judge and his monitor from a landmark anti-discrimination case at the New York City Fire Department, rejecting the city's bid to eliminate court oversight of minority recruitment and hiring at the FDNY.

But in a complicated 59-page ruling, the Second U.S. Circuit Court of Appeals in Manhattan also reversed U.S. District Judge Nicholas Garaufis' finding that the city intentionally discriminated, banned Garaufis from rehearing that issue, and trimmed the monitor's term and powers.

Both sides spun the appeals decision as a big win. Top city lawyer Michael Cardozo said the court had cut the term of Garaufis' court-appointed monitor from 10 to five years, and eliminated requirements for expensive outside consultants to micromanage minority recruitment and equal opportunity at the FDNY.

"In effect, the city has regained control of the fire department," he told reporters.

But attorneys for the Vulcan Society, a black firefighters group that helped try the case, said that while the appeals panel rejected Garaufis' finding of intentional discrimination, it found a historic "distressing pattern" of low minority hiring that required an independent monitor.

"We have been struggling for 40 years to end persistent discrimination in all parts of the FDNY," said Vulcan official Paul Washington. "This ruling vindicates our efforts."

The decade-old case was brought by the federal government to improve minority hiring at the 90 percent white FDNY. Tuesday's rulings did not involve a new firefighter test ordered by Garaufis and given last year, or up to $130 million in damages the city may owe to those who took previous tests.

While the city did not challenge Garaufis' findings that old hiring tests discriminated against minorities, it bristled when he found in 2010 -- without a trial -- that the Bloomberg administration's continued use of the exams constituted intentional discrimination, and later said a monitor was needed to make sure the FDNY cleaned up its act.

The appeals court, in a 2-1 decision authored by Judge Jon Newman, agreed that Garaufis was wrong in finding intent to discriminate without giving the city a chance to offer evidence on its efforts to increase diversity. Newman said that because Garaufis had already trashed the city's explanations, he couldn't preside at a nonjury trial.

"We have no doubt that Judge Garaufis is an entirely fair-minded jurist," wrote Newman, " . . . but we think a reasonable observer would have substantial doubts whether the judge, having branded the City's evidence 'incredible,' could thereafter be impartial."

But Judge Rosemary Pooler dissented from that ruling, and Newman and Judge Ralph Winter said it did not follow that Garaufis was too biased to keep control of the rest of the case, or that his monitor was unneeded. FDNY discrimination cases dated back to 1973, Newman wrote, and the history showed official "recalcitrance."

Cardozo praised the court for eliminating the "stigmatization" of the city as an intentional discriminator, but his office acknowledged late Tuesday that the ruling had a limited practical effect.

While detailed record-keeping requirements and a requirement that Mayor Michael Bloomberg personally approve court filings were eliminated, a spokeswoman said all hiring steps will still have to be cleared with Marc Cohen, the lawyer the judge named as monitor.

The Uniformed Firefighters Association, which opposed Garaufis' intervention, said it was unhappy that the appeals court didn't go further. "We are disappointed the court did not throw out the entire case," said union president Steve Cassidy.

Richard Levy, a lawyer for the Vulcan Society, said the organization would insist on a trial on intentional discrimination to hold city officials "accountable," but the bulk of their victory was intact regardless.